Summary: Is an act of dismissal discriminatory when the employer only knows of the disability post-dismissal?
No, says the EAT in Stott v Ralli Ltd available here.
Background: Employees can bring a claim under s15 Equality Act 2010 that they have been subjected to unfavourable treatment because of something arising from a disability. However, for the claim to succeed, the employer must have known (actual knowledge) or could reasonably be expected to know or find out about (constructive knowledge) the disability at the time of the unfavourable treatment.
Facts: Ms Stott was employed by Ralli Solicitors as a paralegal. She was dismissed during her probationary period following concerns about poor performance. Ms Stott raised a grievance that she had been suffering from anxiety and depression which caused her poor performance. Her grievance (and appeal) was dismissed.
Ms Stott brought a Tribunal claim for disability discrimination under s15 of the Equality Act. She argued that she had been discriminated against as a result of her dismissal because of something (i.e. her performance) arising out of her disability (i.e. her anxiety and depression). However, Ms Stott did not argue that the outcome of her grievance or appeal were discriminatory in themselves.
The Tribunal dismissed the claim. Although it was accepted that Ms Stott was disabled, the employer did not and could not have known about this disability at the time of the dismissal.
Ms Stott appealed to the EAT.
The EAT dismissed the appeal. The employer only gained knowledge of Ms Stott’s disability after her dismissal and this was not relevant to her claim. However, if Ms Stott had argued that the outcomes of her grievance or appeal were in themselves discriminatory, such claims may have succeeded.
Implications: The good news is that it is only the knowledge (or lack of) of the disability at the time of each alleged act of discrimination which is relevant.
However, unfortunately employees will in most cases argue that each individual act is discriminatory. Therefore we recommend carrying out further investigation in circumstances where an employee claims they are disabled following dismissal, into their medical condition. This will likely include obtaining medical evidence and then reviewing it to assess its likely impact on the reason for the employee’s dismissal and whether such decision should be reversed.
If the decision to dismiss is upheld, then at least the further investigations should help defend any later claim. In particular it would help with the argument that the treatment of the employee was a proportionate means of achieving a legitimate aim; in other words it was appropriate and necessary in the circumstances and there was no less discriminatory way to achieve the same aim.
Further, if an employee has two years’ service, employers are also likely to be defending an unfair dismissal claim. In this case the spotlight is on the dismissal process as a whole and a Tribunal is likely to have regard to any post-dismissal knowledge of disability when considering if the dismissal was fair. Even more reason to investigate and take the employee’s condition into account.